Jessie M. Cox v. Gerald Cox

No. 96-0915
STATE OF WISCONSIN	IN COURT OF APPEALS DISTRICT II
JESSIE M. COX, by her Guardian ad Litem, STEVEN L. WILSON, and DEBORAH A. SEIPP, f/k/a DEBORAH A. COX, Plaintiffs-Respondents, v. GERALD COX, and TENA COX, Defendants, MT. MORRIS MUTUAL INSURANCE COMPANY, Defendant-Appellant.

APPEAL from an order of the circuit court for Winnebago County: ROBERT A. HAASE, Judge. Affirmed.

Before Brown, Nettesheim and Anderson, JJ.

ANDERSON, J. Mt. Morris Mutual Insurance Company (Mt. Morris) appeals from a nonfinal order for summary judgment granting coverage under Gerald and Tena Cox’s (the Coxes) policy for injuries Gerald’s daughter, Jessie M. Cox, received from a dog bite while at the Coxes’ home. The dispositive issue is whether a child of divorced parents, who is injured at her father’s home during a period of temporary physical placement (visitation), is a resident of the household and thereby an insured under the father’s homeowner’s policy subject to the family exclusion provision. We conclude that Jessie was “not living with” the Coxes at the time of the injury and we therefore affirm the trial court’s order.

The facts are not in dispute. Gerald Cox and Deborah A. Seipp, f/k/a Deborah Cox, Jessie’s parents, were divorced in 1989. They were awarded joint legal custody of Jessie with primary physical placement with Deborah. Gerald was awarded periods of temporary physical placement at reasonable times upon reasonable notice.

On July 28, 1994, Jessie, then eight years old, was visiting the Coxes when she was attacked by their dog and suffered injuries. Thereafter, Jessie, by her guardian ad litem, and Deborah filed a personal injury action against the Coxes. At the time of the dog attack, the Coxes had a homeowner’s policy issued by Mt. Morris. The applicable portions of the policy provided:

[Definition] 5. “Insured person” means:

a. you;

b person living with you and related to you by blood, marriage or adoption;

.…

[Exclusion] 17. We do not cover bodily injury to any insured person.

Mt. Morris denied coverage for the claim under the family exclusion clause. Mt. Morris then retained separate counsel for the Coxes. The parties filed competing motions for summary judgment on the issue of insurance coverage. Mt. Morris argued that Jessie is an “insured person” under the policy and therefore falls under the family exclusion clause. Jessie sought summary judgment for coverage. The trial court concluded that Mt. Morris’ policy was ambiguous and resolved the motions on public policy grounds. Based on public policy, the trial court concluded that “in the absence of specific contract language to the contrary, a child who is spending periods of temporary physical placement is not ‘living with’ that parent under facts such as exist in this case.” Mt. Morris appeals this nonfinal order. Additional facts will be included within the body of the decision as necessary.

On appeal, Mt. Morris contends that Jessie was clearly an integrated member of the Coxes’ household entitling Mt. Morris to summary judgment in its favor. We review a motion for summary judgment using the same methodology as the trial court. See M & I First Nat’l Bank v. Episcopal Homes, 195 Wis.2d 485, 496, 536 N.W.2d 175, 182 (Ct. App. 1995). That methodology is well known and will not be repeated here except to observe that summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See id. at 496-97, 536 N.W.2d at 182; § 802.08(2), Stats. The facts are not in dispute. Rather, the issue on appeal turns on the exclusion clause in the Coxes’ homeowner’s insurance policy. Construction of an insurance contract is a matter of law that we also decide de novo. See Whirlpool Corp. v. Ziebert, 188 Wis.2d 453, 455, 525 N.W.2d 128, 129 (Ct. App. 1994), aff’d, 197 Wis.2d 144, 539 N.W.2d 883 (1995).

Mt. Morris maintains that Jessie was an “insured person” under its policy because “she was ‘living with’ [the Coxes] at the time she was bitten by the family dog.” Mt. Morris further asserts that Jessie was an integrated member of the household of the Coxes because “she was involved in an intimate, informal, and substantial relationship with [the Coxes] such that they would want to benefit and protect her.”

“Residents of a household” is a phrase designative of a relationship where persons live together as a family and deal with each other in a close, intimate and informal relationship and not at arm’s length. See A.G. v. Travelers Ins. Co., 112 Wis.2d 18, 21, 331 N.W. 2d 643, 645 (Ct. App. 1983). The determination of whether an individual is a member of the household is based on three factors: (1) living under the same roof; (2) in a close, intimate and informal relationship; and (3) where the intended duration is likely to be substantial, where it is consistent with the informality of the relationship and from which it is reasonable to conclude that the parties would consider the relationship in contracting about such matters as insurance or in their conduct in reliance thereon. See Pamperin v. Milwaukee Mut. Ins. Co., 55 Wis.2d 27, 36-37, 197 N.W.2d 783, 788-89 (1972). However, no one factor is controlling in the determination; instead, the elements must combine to a greater or lesser degree to establish the relationship. See id. at 37, 197 N.W.2d at 789. Further, the determination of residency is fact specific. See Ross v. Martini, 204 Wis.2d 354, 358, 555 N.W.2d 381, 383 (Ct. App. 1996). When the factors of residency are applied to the current situation, we find that Jessie was not a resident of the Coxes’ household and thereby affirm the trial court’s finding.

The record indicates that Jessie was not living under the same roof as the Coxes; instead, she resided with Deborah and occasionally visited the Coxes. It is well established that one is not a resident of the household or a member of the family if, even though they have no other place of abode, they come under the family roof for a definite short period of time. See National Farmers Union Property & Cas. Co. v. Maca, 26 Wis.2d 399, 408, 132 N.W.2d 517, 521-22 (1965). Here, Jessie had a place of abode with Deborah and her visits with the Coxes were of quite short duration, generally not more than two or three days. Although Gerald maintained a close, intimate relationship with Jessie and intended on continuing a parental relationship, this alone does not make Jessie an insured. Moreover, the sporadic nature and short duration of the visits indicate that the parties intended Jessie’s stays to be nothing more than visitation with her father. Finally, Jessie always brought her clothes with her in a suitcase and took her dirty clothes home in a plastic bag and she kept no toys or any other possessions at the Coxes.

This court has held that the intention of the parties is one of the most important evidentiary questions to be considered when determining residents of a given household. See Lecus v. American Mut. Ins. Co., 81 Wis.2d 183, 190, 260 N.W.2d 241, 244 (1977). In addition, legal custody, when added to a parent’s intent to continue a long established living situation with a minor, is generally sufficient to establish residency in a household. See id. Although Gerald and Deborah had joint legal custody of Jessie, Deborah made all of the major decisions on Jessie’s behalf. Even though Gerald may have intended to continue the parental relationship, this alone is not enough to establish Jessie as an insured under his homeowner’s policy. Because Jessie did not live with Gerald on a regular or frequent basis, it was not possible for her to acquire more than one residence. But cf. Londre v. Continental Western Ins. Co., 117 Wis.2d 54, 59, 343 N.W.2d 128, 131 (Ct. App. 1983).

Mt. Morris next argues that “living with” is ambiguous. Although “living with” has never been given a clear definition, it has been equated with “residents of the same household.” Courts have not found either of these phrases ambiguous; rather, “residents of the same household” has been ruled unambiguous. See Quinlan v. Coombs, 105 Wis.2d 330, 334, 314 N.W.2d 125, 127-28 (Ct. App. 1981). By ruling the term unambiguous, the court stated that the term is capable of “plain and common” meaning and is easily definable to the normal speaker of English. See id. at 334, 314 N.W.2d at 128. Further, an unambiguous term is not made ambiguous because it is difficult to apply to the facts of a particular case. See Lawver v. Boling, 71 Wis.2d 408, 422, 238 N.W.2d 514, 521 (1976). Contrary to Mt. Morris’ contention, “living with” is not ambiguous.

Finally, Mt. Morris requests that this court make a decision based on public policy grounds. However, as most recently clarified by our supreme court in Cook v. Cook, No. 95-1963, slip op. at 22 (Wis. Mar. 19, 1997), “The court of appeals, a unitary court, has two functions. Its primary function is error correcting. Nevertheless under some circumstances it necessarily performs a second function, that of law defining and law development, as it adapts the common law and interprets the statutes and federal and state constitutions ….” In contrast, the supreme court’s primary function is that of law defining and law development. See id. It follows that matters of public policy are to be determined primarily by the supreme court, not this court. See id. We decline Mt. Morris’ offer to step into the supreme court’s shoes.

In sum, we conclude that Jessie was not a member of the Coxes’ household at the time of the dog bite incident and is therefore covered under the Coxes’ homeowner’s policy. We further conclude that the term “living with” is not ambiguous.

By the Court.—Order affirmed.

Not recommended for publication in the official reports.